Miranda warning—is anyone awake out there?

05Mar

This a re-do of the original posting made in June 2009. It was, and still is, a beautifully constructed dissertation on the use of the Miranda warning by our nation’s law enforcement officers. I labored long and strong to support my contention that the warning is almost universally misused, and that such misuse is highly detrimental to our efforts to stem the ever-escalating crime rate in the United States.

It is my humble and completely unbiased opinion that I made my case, yet I have received zero comments on the posting—not one comment after ten months online, neither positive nor negative—nothing, nada, nicht, nein, ninguna, nessun, aucun, keine. The posting has garnered only one vote, albeit a vote of excellence, and in the interests of full disclosure I must reveal that the single vote is mine. In a state of despair, desolation, deprivation and delusion from the lack of attention shown to the posting, I first voted for myself, and then briefly considered doing away with myself—no, no, not that way. I briefly considered shutting my blog down, but I decided that, for the greater good for the greatest number of people, I would continue my Herculean efforts to educate—and yes, entertain—the legions of Word Press users.

I decided to vote for myself in the hope that the initial vote would spark a flood of comments and votes. The complete absence of votes and comments pushed me perilously close to the brink of despair. I was in a blue funk, “a mental state characterized by a pessimistic sense of inadequacy and a despondent lack of activity.” I blissfully dreamed of my posting catching the attention of persons at high levels, and ultimately bringing recognition from those levels, perhaps in the form of a presidential gold medal—or at least an attaboy on paper from one or more of those persons.

But I feel better now—that first vote helped a lot!

The original posting follows—it’s dated June 15, 2009, and you canfind it here. Try it, you might like it! Oh, and just one more note: The original posting and this re-post allow multiple votes, comparable to our multiple voting for political candidates in our national elections.

I was a federal Civil Service law-enforcement officer for the final 26 years of my 48 years in the work force (I spent the first 22 years in the US military). In the early years of my law enforcement career, before I was taken off the street by a series of promotions, I had cause to administer the Miranda warning on numerous occasions.

My reason for this posting is to express an opinion concerning the Miranda warning.

I believe the Miranda warning, as given in most jurisdictions by most law enforcement officers, has been corrupted by the wording of the warning—with no ulterior motive on the part of law enforcement officers but none the less corrupted. The wording of the warning, as given by most officers, has perhaps contributed to many, perhaps most, of their suspects exercising their right to remain silent and to request an attorney. They take this action to avoid incriminating themselves, whether guilty or not guilty, rather than cooperating with officers and giving answers to questions, answers which, while not necessarily incriminating the suspect, perhaps could have contributed to solving crimes.

A Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are interrogated. A custodial situation is one in which the suspect’s freedom of movement is restrained although he or she is not under arrest. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her “Miranda rights” and made a knowing, intelligent, and voluntary waiver of those rights (the term “Miranda rights” is somewhat misleading, as the mandated Miranda warning simply clarifies preexisting Constitutional rights).

The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect’s Fifth Amendment right to avoid coercive self-incrimination (see right to silence).

The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, the Court did create a set of guidelines which must be followed. The ruling states:

“…The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person saysmaybe usedagainst that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.

Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when he is arrested or placed in a custodial situation, the typical warning being as follows:

You have the right to remain silent. Anything you say can andwill be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?

The remainder of this posting is strictly mine, with references to the above information.

For starters, check out the above two phrases in red in the Wikipedia information above—the first phrase is the Court’s requirements for the wording of the Miranda warning, and the second is the wording used in most police jurisdictions—they are not the same—aye, there’s the rub!

The Supreme Court saays that a suspect must be informed that anything that person says may be used against that person in court. Compare that requirement with the wording in the typical Miranda warning used by officers: “Anything you say can and will be used against you in a court of law.” This offers a compelling reason for the suspect to remain silent and request an attorney.

Imagine yourself under arrest or in a custodial status, and imagine being told the conditions which will prevail if you choose to answer questions, and the conditions which will prevail if you choose to remain silent.

Which offer would you take? Which would you feel was more advantageous for you? The one that says that anything you say can and will be used against you in a court of law, or the one that says anything you say may be used against you in a court of law?

Come on, ‘fess up—you would be more inclined to choose the one which says can and will be used against you and ask for a lawyer, rather than choose the one which says may be used against you. May means that what you say mightbe used and that it can be used, but not that it willbe used.

The other option states unequivocally that what you say willbe used against you—the inference is that anything you say can and will be used against youwith no reference to, or apparent regard for, your innocence or guilt.

The wording of the Miranda warning, as used by most law enforcement officers, does not encourage a person in custody to cooperate in a criminal investigation. It instead encourages them to remain silent and request an attorney.

That’s my opinion, and I’m sticking to it.

This is my question:

How many people, guilty or not guilty, remain silent and request an attorney and thus contribute nothing to the investigation? Does the wording of the Miranda warning, the phrase will be versus the Supreme Court’s may be, perhaps influence that decision? Could the emphasis placed by the officer on certain words in the warning influence that decision? Stronger emphasis on the words will be, for example, might influence a person to remain silent and request an attorney. Conversely, emphasis on the phrase may be could possibly influence a person in custody, particularly an innocent person, to cooperate with law enforcement in the investigation.

In my opinion, it’s worth giving it a try—simply change the wording to conform with the Supreme Court’s stated requirements and emphasize these key words, may be used against you, when giving the warning. This could possibly prompt the subject to cooperate in the criminal investigation rather than remaining silent, and the officer giving the warning would in strict compliance, word for word, with the requirements levied by the Supreme Court of the United States.

Does everyone—some one—anyone—agree with me?

Does everyone—someone—anyone—disagree with me?

I welcome input from everyone, whether in agreement or disagreement, whether in or out of law enforcement, but particularly from law enforcement officers currently on duty, retired officers, and persons formerly employed in law enforcement.

2 responses to “Miranda warning—is anyone awake out there?”

I agree with you and ever since you pointed this out (years ago), whenever I watch any of the law enforcement shows (SVI, Law & Order, CSI, etc.), I cringe when I hear it used incorrectly! See what you’ve done? 🙂

I don’t understand it—I have no doubt that I could easily steer a suspect away from asking for a lawyer by using facial expressions, hand gestures and body language and words and phrases properly formed and enunciated, something on the order of, “Hey, man, even if you decide to talk, like, you know, we may not even use anything you say, and if we did it might well be in your favor, you know? We may use it or we may perhaps use it, but not probably, or not even consider anything you say, like, you know, if we didn’t need to use it, nome sain?” By this time the suspect will have spilled the beans, if for no other reason than to get the questioner to shut up and let him get some sleep!